Citation Nr: 9932936
Decision Date: 11/23/99 Archive Date: 12/01/99
DOCKET NO. 97-32 940 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUES
1. Entitlement to an initial evaluation in excess of 50
percent for post-traumatic stress disorder (PTSD).
2. Entitlement to a total rating for compensation purposes
based on individual unemployability due to service-connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: Maine Division of Veterans
Services
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Tresa M. Schlecht, Counsel
INTRODUCTION
The veteran had active service from September 1971 to August
1975. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from rating decisions of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Togus, Maine. By an August 1997 rating decision, the RO
granted service connection for PTSD and assigned an initial
50 percent evaluation for that disability.
By an April 1998 rating decision, the RO denied a February
1998 claim of entitlement to a total rating for compensation
purposes based on individual unemployability due to service-
connected disabilities (TDIU). The veteran timely disagreed
with that rating decision, and, after the RO issued a
statement of the case, a substantive appeal on the TDIU issue
was received in July 1998. However, in view of the following
decision of the Board, the appeal on the TDIU issue becomes
moot.
FINDINGS OF FACT
1. Prior to May 10, 1993, the medical evidence reflects that
the veteran's PTSD was manifested by nightmares, difficulty
sleeping, irritability, depression, and a history of conflict
with authority, some hallucinations or delusions, paranoia,
panic or anxiety attacks with physical manifestations, among
other symptomatology, requiring weekly outpatient treatment
and psychotropic medications.
2. From May 10, 1993, to June 1997, the medical evidence
reflects that the veteran's PTSD was manifested by
nightmares, difficulty sleeping, irritability, depression,
and a history of conflict with authority, productive of
considerable, but not severe, impairment of social and
industrial adaptability, not requiring psychotropic
medications or other clinical treatment after July 1994.
3. From June 11, 1997, the medical evidence reflects that
the veteran's PTSD has been manifested by increasing anxiety
and panic, ritualistic behaviors, auditory hallucinations,
increased paranoia, and severe isolation, and he has been
essentially housebound due to fear that if he leaves the
house, the people who are looking for him will hurt him.
CONCLUSIONS OF LAW
1. Prior to May 10, 1993, the criteria for entitlement to a
70 percent evaluation, but no more, for service-connected
PTSD, were met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38
C.F.R. § 4.130, Diagnostic Code 9411 (1999); 38 C.F.R. §
4.132, Diagnostic Code 9411 (as in effect prior to November
7, 1996).
2. From May 10, 1993, to June 11, 1997, the criteria for an
evaluation of 50 percent, but no higher, for service-
connected PTSD, were met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999); 38
C.F.R. § 4.132, Diagnostic Code 9411 (as in effect prior to
November 7, 1996).
3. The criteria for a 100 percent evaluation for PTSD have
been met since June 11, 1997. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran is appealing the original assignment of a
disability evaluation following an award of service
connection for PTSD, and, as such, his claim for assignment
of a higher evaluation is well-grounded. 38 U.S.C.A. §
5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995).
Additionally, the Board notes that a claim for TDIU benefits,
as with a claim that a service-connected disability has
increased in severity, is also well-grounded. The Board
finds that all relevant facts have been properly developed,
and that all evidence necessary for equitable resolution of
the issue has been obtained. No additional action is
necessary to meet the duty to assist the veteran. 38
U.S.C.A. § 5107(a).
Moreover, since the present appeal for an increased
evaluation for PTSD arises from the initial rating decision
which established service connection for that disability and
assigned the initial disability evaluation, it is not the
present level of disability which is of primary importance,
but rather the entire period is to be considered to ensure
that consideration is given to the possibility of staged
ratings; that is, separate ratings for separate periods of
time based on the facts found. Fenderson v. West, 12 Vet.
App. 119 (1999).
Disability evaluations are determined by comparing the
veteran's present symptomatology with the criteria set forth
in VA's Schedule for Rating Disabilities. See 38 U.S.C.A. §
1155; 38 C.F.R. Part 4.
In this case, veteran's PTSD has been evaluated under
Diagnostic Code 9411. Prior to November 7, 1996 ("old"
criteria), where PTSD was productive of considerable
impairment of social and industrial adaptability, a 50
percent rating was assignable, and a 70 percent evaluation
was assignable where there was severe impairment. 38 C.F.R.
§ 4.132, Diagnostic Code 9411 (1996). A 100 percent
evaluation required virtual isolation in the community, or
totally incapacitating psychoneurotic symptoms bordering on
gross repudiation of reality with disturbed thought or
behavioral processes (such as fantasy, confusion, panic, and
explosions of aggressive energy) associated with almost all
daily activities, or demonstrable inability to obtain or
retain employment. Id. (emphasis added).
By regulatory amendments effective November 7, 1996 ("new"
criteria), substantive changes were made to the schedular
criteria for evaluating psychiatric disorders, including
PTSD, as set forth in 38 C.F.R. §§ 4.125-4.132. See 61 Fed.
Reg. 52,695-702 (1996). Consideration of the veteran's claim
for increase under both criteria is required. See Rhodan v.
West, 12 Vet. App. 55, 57 (1998) (stating that the effective
date rule established by 38 U.S.C.A. § 5110(g) prohibits the
application of any liberalizing rule to a claim prior to the
effective date of such law or regulation); Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991).
During the course of the veteran's appeal, amended
regulations governing evaluation of mental disorders,
including PTSD, were issued, and became effective November 7,
1996. Under the amended criteria applicable to Diagnostic
Code 9411, a 50 percent rating is warranted when PTSD
symptomatology causes occupational and social impairment with
reduced reliability and productivity, and difficulty in
establishing and maintaining effective work and social
relationships. A 70 percent evaluation is warranted when
PTSD causes occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking or mood, and an inability to
establish and maintain effective relationships.
The highest available rating, 100 percent, is warranted where
the disorder is manifested by total occupational and social
impairment due to such symptoms as gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting oneself or others; an intermittent
inability to perform the activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, one's own occupation, or one's own name. 38
C.F.R. § 4.130, Diagnostic Code 9411 (1999).
The Board notes that the RO considered the veteran's claim
under the amended regulations as part of the rating decision
issued in August 1997.
Lengthy VA clinical records dated from late 1991 through mid-
1993 reflect that the veteran was attempting to abstain from
alcohol use, and nevertheless had symptoms including anxiety,
nightmares, difficulty sleeping, isolation, anger,
impulsivity, depression, and multiple physical complaints.
Various diagnoses, including anxiety disorder and PTSD, were
assigned. On VA examination in March 1993, the veteran was
fully oriented, had no signs of thought disorder, was visibly
depressed, was perspiring profusely, was trembling, restless,
complained of heart palpitations, nervousness, hot flashes,
and difficulty concentrating, among other symptoms. Medical
examination disclosed that the veteran had hypertension which
was recalcitrant to treatment, was overweight, had bilateral
hand pain for which he was wearing a cock-up wrist splint,
and complained of neck pain, left ankle pain and left knee
pain.
At the time of VA psychiatric outpatient examination
conducted on May 10, 1993, the examiner noted that the
veteran did not appear particularly anxious or depressed.
His affect was warm and appropriate. He was alert,
cooperative, and had no though disorder. He reported that he
had maintained sobriety for six months. A Global Assessment
of Functioning (GAF) score of 60 was assigned. A GAF score
of 60 indicates both moderate symptoms and moderate
difficulty in social and occupational functioning. See
AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS 46-47 (4th ed. 1994); Carpenter v. Brown, 8
Vet. App. 240, 242 (1995). The Board notes that this GAF
score represents the veteran's level of functioning overall,
and the examiner did not limit the disability represented by
the GAF score to the veteran's psychiatric symptomatology
standing alone.
The clinical records following the May 10, 1993, VA
examination reflect that the veteran's decreased
symptomatology and apparent improvement continued. In July
1993, the veteran reported that he and his girlfriend were
buying a house together, and that he had been able to control
his temper better. He maintained sobriety despite deaths of
several family members and close friends in a brief time
period.
Medical examination reports from mid-1993 through 1996
include occasional notations that the veteran appeared
anxious or that he was sweating during the examination, but
reflect a focus on physical medical problems with few
complaints of a mental health nature.
Mental health outpatient treatment notes subsequent to the
May 1993 psychiatric examination reflect that the veteran had
fewer complaints of nightmares, outbursts of violence, or
panic or anxiety in social situations, and are nearly devoid
of complaints that people were watching him. Rather, his
complaints and treatment were focused on maintaining sobriety
and improving his relationship with his girlfriend. Notes
dated in April 1994 reflect that the veteran was calmer, was
"doing well."
The clinical records reflect that the veteran did not
continue his weekly outpatient mental health treatment visits
after June 1994. Subsequent outpatient treatment records
reflect that the veteran sought treatment for a variety of
medical disorders. Those clinical records disclose that the
veteran was taking a variety of prescribed medications, but
the written medication lists, as well as computerized
medication profiles available for a portion of 1996, are
devoid of evidence that the veteran continued to take
psychotropic medications.
On VA examination conducted in June 1996, the veteran's
primary complaints centered on pain and on difficulty
sleeping. He was depressed and his speech was somewhat slow.
He reported that he was still drinking. The veteran was
anxious, depressed, and had difficulty dealing with pain. He
had poor eye contact and his hands shock. He had fair
cognitive function. No delusions or hallucinations were
reported, and his associative processes were intact. His
judgment was fair. His memory was impaired when drinking.
He was somewhat withdrawn, but reported socializing with his
girlfriend and her family. The examiner concluded that the
veteran's industrial capacity was moderately impaired by his
psychiatric symptoms, and assigned a GAF of 60.
On VA examination conducted in June 1997, the veteran was
neatly dressed and was oriented to time, place and person.
His speech and thought were goal oriented. His memory for
recent and remote events was intact. The rate and flow of
his speech was logical and clear. He reported that he felt
"worse" since he quit drinking alcohol than he did before.
He reported panic attacks, trouble sleeping, and suicidal
thoughts. His mood was mildly depressed and his affect was
mildly blunted. He also reported hearing voices which
encouraged him to do what he was doing. He felt that people
were analyzing him and studying him. He avoided "fights"
by staying in the house. He would close the widows and put
pillows over the windows so people could not see him. He
reported that he was house-bound, staying in the house, where
he lived in the basement, almost all the time. The examiner
concluded that the veteran was keeping his problems and
anxiety at bay by remaining in the house. The examiner
assigned a GAF score of 50.
At a personal hearing conducted in February 1998, the veteran
testified that he had nightmares. He avoided newspapers and
television news, although he watched sports and weather on
TV. The veteran testified that the place he lived was at the
end of a dirt road in the woods. His nearest neighbor was
about a quarter of a mile away. He was not acquainted with
this neighbor, but did know what he looked like. He reported
little contact with the person he shared the house with. The
veteran reported panic attacks manifested by perspiration and
other physical problems such as heart palpitations. He
testified that the dogs and cats where he left were his
"only real friends." He reported difficulty in his
relationship with his two children. He reported that he was
not currently under treatment for his depression or anxiety
because he did not like seeing a different provider each time
and because the providers at the VA clinica he had been
attending did not believe his account of an in-service
stressor, seeing an automobile accident which killed his best
friend, and he frequently had to go back over it and provide
details. The Board notes that records obtained during the
course of this appeal confirm the veteran's statements as to
the circumstances of that incident.
VA outpatient treatment records reflect that the veteran
returned for individual counseling in April 1998, reporting
increasing panic and isolation. He reported that he lived in
the basement of a house his girlfriend owned and that he went
upstairs only for meals. Clinical notes dated in May 1998
reflect that the veteran was irritable, angry, and stayed in
his home to prevent himself from losing control and hurting
someone. He had an exaggerated startle reaction. His
concentration was impaired. He joked about having
Alzheimer's disease. He reported that he no longer drank but
actually felt worse since he stopped drinking. He felt
overwhelmed by simple tasks. He denied suicidal ideation but
stated he wished he could die. The veteran reported that he
experienced high levels of anxiety in any type of social
situation and that he could no longer walk into a store,
although he had previously been able to do this.
Psychotropic medications were prescribed.
Clinical notes in June 1998 reflected an assessment at the
veteran was less depressed. He was angry and irritable; most
of his anger and irritability was directed at his girl
friend, as she was the only person he saw. The veteran was
disappointed that his children were unable to see him on
Fathers' Day. He hoped to see the children later in the
summer. The medication regimen was adjusted.
In July 1998, the veteran was less depressed and irritable.
He reported that he enjoyed seeing his children. However, a
subsequent treatment note reflected that his ex-wife was
withholding visitation privileges because the veteran had
made some angry remarks while the children were in the car.
In September 1998, the veteran reported that he and his
girlfriend had married and wanted to have a child.
By a rating decision issued in April 1993, the RO evaluated
the veteran's anxiety disorder as 70 percent disabling for
purposes of non-service-connected pension. The Board finds
that the veteran's symptoms at the time of the March 1993 VA
examination were consistent with the 70 percent evaluation
assigned. In contrast, the May 1993 VA examination and
subsequent treatment records reflected a picture of decreased
psychiatric disability, but increased physical disability.
Although the 70 percent evaluation assigned in April 1993 was
for an anxiety disorder, rather than being assigned for PTSD,
resolving doubt in the veteran's favor, and attributing all
psychiatric symptomatology to service-connected PTSD, the
Board finds that the evidence warrants a 70 percent
evaluation from the date of claim to May 10, 1993. The Board
also notes that, under Rhodan, supra, the evidence as to this
time period is not evaluated under the amended criteria, as
those criteria were not effective during this period.
The Board notes that a 70 percent evaluation appears
consistent with the July 1993 Social Security Administration
(SSA) decision, which determined that the veteran was
disabled for SSA purposes. The Board also notes that the
Exhibit List for that SSA decision reflects that the decision
was based on VA and private clinical records dated prior to
April 1993. The SSA decision reflected that the veteran had
significant symptomatology associated with mental disorders
diagnosed at that time.
The Board further finds that the veteran's symptoms prior to
May 10, 1993, did not meet the criteria for a 100 percent
(total) schedular evaluation. The medical evidence reflects
that the veteran formed and maintained a relationship with a
girlfriend and has frequent clinical visits. This evidence
is not consistent with virtual isolation in the community,
nor does the evidence reflect that the veteran's symptoms
were so severe as to border on gross repudiation of reality.
Additionally, the Board notes that, although SSA determined
that the veteran was unable to work, the determination that
the veteran was unable to work included recognition of the
disability due to medical disorders unrelated to PTSD.
Moreover, the SSA decision included discussion of disability
due to alcohol abuse and polysubstance abuse. The Board
cannot consider the disability due to the medical disorders
or to alcohol abuse in determining the appropriate evaluation
of PTSD. Thus, a finding that the veteran was not rendered
unemployable by his PTSD, so as to warrant a total schedular
evaluation, is consistent with the SSA decision and the
evidence of record.
After reviewing the evidence as a whole, the Board concludes
that there was apparent improvement in the veteran's
psychiatric symptomatology, with the first medical evidence
of that improvement reflected in a May 10, 1993 examination
report. After May 10, 1993, the veteran's complaints of
nightmares or hallucinations decreased. Reports of violent
outburst decreased, and the evidence reflected decreased
physical manifestations of anxiety or panic. In particular,
the evidence did not reflect episodes of profuse sweating,
heart palpitations, hot flashes, or similar symptoms during
examinations. He no longer required psychotropic medication
or outpatient counseling to maintain stability. Thus, the
evidence reflects that the veteran's PTSD met the criteria
for 50 percent disability, but no more, during this period,
from May 10, 1993 to June 11, 1997. Since the amended
criteria were effective in November 1996, the Board has
considered the evidence for the period from November 1996 to
June 1997 to determine whether the amended criteria would
result in a more favorable evaluation, once those criteria
become effective.
However, there is no evidence during this period that the
veteran's speech was illogical, that he had near-continuous
panic or anxiety, was disoriented, or that other symptoms of
a 70 percent evaluation were present. The Board notes that
the veteran continued to have difficulty adjusting to
stressful circumstances and difficulty in maintaining
relationships, but that he continued to see his children at
least occasionally and continued to live with his girlfriend.
In the absence of other criteria warranting a 70 percent
evaluation, the Board finds that the evidence as to these two
criteria does not place the evidence in equipoise to warrant
a 70 percent evaluation prior to June 11, 1997.
After a complete review of the evidence of record, the Board
finds that the veteran's PTSD symptoms, beginning in June
1997, approximated the criteria for a total schedular
evaluation, under the criteria in effect at the time the
veteran filed his claim. Review of the evidence after
November 1996 to determine whether the "old" criteria or
the amended criteria are more favorable in the this case, the
Board finds that the "old" criteria are more favorable to
the veteran because the three criteria the veteran must meet
to warrant a total evaluation are alternative measures, and
meeting any one of the three criteria warrants a 100 percent
evaluation. In contrast, the amended criteria require a
broader spectrum of disabling symptoms before a 100 percent
evaluation is warranted. Compare 38 C.F.R. § 4.132,
Diagnostic Code 9411 (1996) with 38 C.F.R. § 4.130,
Diagnostic Code 9411 (1999).
In this case, the report of the June 1997 VA examination,
which reflects that the veteran was virtually housebound by
his fears, and further reflects that he confined himself
largely to the basement of a rather isolated residence,
warrants a finding of virtual isolation in the community.
The report of that examination also warrants a finding that
the veteran would be demonstrably unable to find a job, since
he left the house only for essential medical appointments,
and would be unable to retain employment for that same
reason. Thus, the Board finds that a 100 percent evaluation
after June 11, 1997, is warranted.
In conclusion, the Board finds that the preponderance of the
evidence supports assignment of a 70 percent rating, under
the "old" criteria, prior to May 10, 1993, a 50 percent
evaluation from May 10, 1993, to June 11, 1997, and a 100
percent evaluation after June 11, 1997. The Board does not
find that the evidence is in equipoise to warrant a more
favorable evaluation for any time period. The provisions of
38 U.S.C.A. § 5107(b) regarding reasonable doubt are thus not
applicable to warrant a more favorable result.
2. Claim for TDIU
The governing regulation, 38 C.F.R. § 4.16, specifically
provides that total disability ratings for compensation may
be assigned, where the schedular rating is less than total,
when the disabled person is, in the judgment of the rating
agency, unable to follow a substantially gainful occupation
as a result of service-connected disabilities. 38 C.F.R. §
4.16(a). However, since the Board has determined that the
veteran here is entitled to a 100% schedular rating for his
service-connected PTSD, he is not eligible, under the terms
of the regulation, for a TDIU rating. See Green v. West, 11
Vet. App. 472, 476 (1998) (veteran with 100% schedular rating
for service-connected disability is for that reason not
eligible for TDIU evaluation).
The Board has considered whether the veteran's claim for TDIU
might entitle him to TDIU benefits for any period prior to
the 100% schedular rating. Since the veteran's TDIU claim
was not received until 1998, the Board's finding that the
requirements for a 100 percent schedular rating for PTSD were
met as of June 11, 1997, renders the appeal on the TDIU claim
moot.
ORDER
A 70 percent evaluation is granted, but no more, for service-
connected PTSD, prior to May 10, 1993.
An evaluation in excess of 50 percent for the period from May
10, 1993 to June 11, 1997, is denied.
A total schedular evaluation (100 percent) for PTSD is
granted from June 11, 1997.
Entitlement to a total disability rating based on individual
unemployability due to service-connected disability prior to
June 11, 1997, is not warranted.
BURCE KANNEE
Member, Board of Veterans' Appeals